Fourteenth Amendment Unenumerated Rights Jurisprudence: An Essay in Response to Stenberg V. Carhart

By Smolin, David M. | Harvard Journal of Law & Public Policy, Summer 2001 | Go to article overview

Fourteenth Amendment Unenumerated Rights Jurisprudence: An Essay in Response to Stenberg V. Carhart


Smolin, David M., Harvard Journal of Law & Public Policy


In one of his last opinions before retiring, Chief Justice Warren Burger acknowledged that the soundness of Roe v. Wade(1) "must be tested by the decisions that purport to follow [it]."(2) Declaring that the Court "should reexamine Roe,"(3) Burger found it astonishing that the Court had rejected a requirement that a second physician be present during the abortion of a viable fetus, given Roe's finding of a compelling governmental interest in the life of a viable fetus. He also objected to the Court's invalidation of informed consent and parental notification regulations. The Chief Justice claimed that that while the Roe Court had clearly rejected the right to abortion on demand, post-Roe decisions had implemented a policy encouraging abortion as a positive good.(4) Thus, while Burger joined Justice Blackmun's majority opinion in Roe,(5) he dissented from Justice Blackmun's majority opinion in Thornburgh v. American College of Obstetricians and Gynecologists.(6)

Six years later in Planned Parenthood v. Casey, the Court, sans Burger, was closely divided over the continued soundness of Roe.(7) Four Justices explicitly argued that Roe should be overruled,(8) while two Justices argued that Roe should be reaffirmed and applied in the absolutist manner Burger had found so objectionable.(9) Justices Kennedy, O'Connor, and Souter, who authored the decisive joint opinion, claimed to be reaffirming the essential core of Roe while removing from it, and from the post-Roe decisions, the absolutist elements.(10) The joint opinion purported to accord respect to the relevant state interests, and thus claimed a willingness to uphold abortion regulations so long as the core right of a woman to decide whether or not to abort a non-viable fetus was not violated.

In Stenberg v. Carhart,(11) Justice Kennedy played the role of Chief Justice Burger. Kennedy, like Burger before him, complained that the moderate decision he joined was misapplied by the majority to invalidate minimalist abortion regulations. Somehow, the moderate Casey precedent was used to justify the more encompassing Stenberg decision.(12) While Justice Kennedy has not yet called for a reexamination of Roe or Casey, his Stenberg dissent forcefully expressed a sense of betrayal and even moral revulsion regarding the majority's interpretation of Casey.

Chief Justice Burger's belief that a precedent must be judged -- and understood -- by the opinions that apply it should be taken seriously. Therefore, it is appropriate to examine why the Roe and Casey doctrines have been expanded to the point where both relevant state interests and traditional rules of constitutional adjudication are now completely submerged. This pattern has not developed randomly, but instead arose from medical, cultural, and psychological factors inherent in the abortion liberty. Particularly because the joint opinion in Casey avoided a reexamination of the abortion liberty by arbitrarily invoking the principle of stare decisis,(13) the Court should engage in a thorough analysis of the nature and structure of abortion liberty in future cases.

The Supreme Court's abortion jurisprudence has developed as a part of the broader doctrines of substantive due process and the right of privacy. The question of unenumerated rights posed by these doctrines goes to the heart of the Court's role within our system of government, and can raise troubling issues as to the legitimacy of the Court's decisions. It is one thing for the Court, following the theory of Marbury v. Madison,(14) to invalidate legislation found to be in clear violation of an explicit constitutional command; it is quite another for the Court to claim the authority to invalidate legislation based on rights not mentioned in the Constitution. Unless such unenumerated rights can be firmly grounded in the overall text, structure, history, principles, or jurisprudence of the Constitution, their use to invalidate legislation can appear illegitimate.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Fourteenth Amendment Unenumerated Rights Jurisprudence: An Essay in Response to Stenberg V. Carhart
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.